Appeal No.	 EAT/1229/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 April 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR A D TUFFIN CBE
MISS D WHITTINGHAM

MR J BRIGGS	APPELLANT

B & Q PLC	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR G PRICE-ROWLANDS
of Counsel
instructed by

MESSRS ALAN ROBERTS & CO
Solicitors
9 Henley Avenue
Wepre Park
Connahs Quay
Chester CH5 4HT	
For the Respondent		

HIS HONOUR JUDGE CLARK:	 This is an appeal by Mr Briggs, the Applicant before the Liverpool Employment Tribunal against that Tribunal’s decision, promulgated with extended reasons on 10 September 1998, dismissing his complaint of unfair dismissal against the Respondent, B&Q PLC.

	the Appellant commenced employment with the Respondent on 4 January 1988 at their Chester store.  He achieved promotion finally to Department Manager.

	In mid-February 1998 Mr Grey, the Manager of the Ellesmere Port Branch, visited the Chester store and helped install a covert camera and video in the cash office as a result of earlier problems.

	On about 25 February 1998 the Chester Manager telephoned Mr Grey after £5 had gone missing.  Together they viewed a video tape.  Thereafter Mr Grey interviewed the Appellant, who was suspected of involvement in the disappearance of the money.  The Appellant made certain statements which Mr Grey regarded as being inconsistent with the evidence from the video tape.  In particular, it was considered that the tape showed the Appellant reaching into the float cupboard and taking an item from it.  The tape was shown to the Appellant, who then qualified and amplified some of his earlier answers to Mr Grey, whilst denying any dishonesty on his part.

	The Appellant was suspended whilst Mr Grey reviewed the differences as he saw them between the Appellant’s version of events and that which appeared on the video and the event log.  The Appellant was then seen by Mr Grey.  The following day he obtained expert evidence that the event log was accurate.  Thereafter Mr Grey concluded, as a result of his investigation, that the Appellant was involved in the disappearance of the money and had lied during interview.  He dismissed him for gross misconduct, and confirmed that decision by letter dated 4 March 1998.  A subsequent appeal to the area manager was dismissed on 1 May 1998.

	The Tribunal reminded themselves that the question for them was not whether the Appellant was in fact guilty of the misconduct alleged but whether Mr Grey had formed an honest belief based on reasonable grounds following a reasonable investigation in that misconduct British Home Stores v Burchell (1978) IRLR 379.   The Tribunal found that to be the case; held that dismissal fell within the band of reasonable responses open to the Respondent and dismissed the complaint.

	Against that decision originally promulgated with summary reasons on 3 June 1998, the Appellant appealed by Notice dated 8 July 1998.  The grounds of appeal included complaints about the Tribunal’s conduct of the hearing.

	At a preliminary hearing held before a division of this Appeal Tribunal presided over by Lindsay J on 4 December 1998 the Appellant was ordered to lodge an affidavit dealing with his complaints about the Tribunal’s conduct in accordance with paragraph 9 of the EAT Practice Direction.  The preliminary hearing was adjourned for that purpose, and in order to receive the Chairman’s comments on that affidavit.  This is the resumed preliminary hearing.

	An affidavit was sworn by Mr Alan Roberts, the Appellant’s solicitor who had appeared on his behalf before the Tribunal, on 11 December 1998.  The Chairman, Mr R S Bradshaw has commented on that affidavit by letters dated 6 and 18 January 1999.  A page had been missing from the original copy affidavit sent to him; hence his second letter.

	The complaints made by the Appellant and contained in Mr Roberts affidavit may be summarised as follows:

	(1)	He was not supplied with the correct video recording at or before the Employment Tribunal hearing, a fact which Mr Roberts drew to the Tribunal’s attention.

	(2)	The computer records relied on by the Respondent were also not produced at the hearing.  Again, a matter of comment by Mr Roberts.

	(3)	Mr Grey was not independent.

	(4)	The Chairman prejudged the matter by stopping the hearing about 10 minutes into the Respondent’s case, saying  he had heard enough so that the Respondent could consider giving the Appellant a reference, that being all that he could expect out of the case, bearing in mind his good record of 10 years service with the company.

	(5)	The Tribunal failed to take into account the Appellant’s previous good record and the fact that searches failed to disclose any connection between him and the missing £5.

	(6)	The store Manager at Chester was a recent appointment, who was very friendly with the cashier, Jane Nicklin with whom the Appellant had many disagreements.

	Further, the Appellant was only able to give about one quarter of his evidence before being stopped by the Chairman saying he would be better off taking a reference.  He felt that he was not given the opportunity to give his full version of events.

	In response to those complaints the Chairman comments as follows:

	(1)	He has no recollection or note that the correct video was relevant to the issues before the Tribunal.

	(2)	Similarly, with the computer records.

	(3)	This point was not raised before the Tribunal.

	(4)	The hearing commenced at 10 am and finished at 1.25pm.  There was a break for discussion between the parties at the Chairman’s suggestion from 11.35am to 12.55pm.  The Chairman had indicated his preliminary view as to the merits of the case when the Respondent’s evidence was substantially completed.  Mr Grey was the only witness called on behalf of the Respondent.

	(5)	The reference to the Tribunal not taking into account the Appellant’s previous employment record is inconsistent with the comment ascribed to the Chairman in paragraph 3(4) of Mr Roberts affidavit.

	(6)	He has no note that the alleged conflict of personalities was relevant.  The Appellant gave all his evidence in chief and was cross-examined and asked questions by a member of the Tribunal.

	Before us today Mr Price Rowlands take essentially 3 points in support of this appeal.  First he submits that the Tribunal ought to have adjourned the proceedings in order that discovery could take place of both the relevant video and the computer records relied upon by the Respondent.  This he submits was probative and admissible evidence without which the Tribunal could not reach a fair decision in this case.  There are two difficulties with that submission.  The first is that there is no suggestion in Mr Roberts affidavit that he applied for an adjournment of the proceedings so that discovery of the video and computer evidence could take place.  On the other hand, the Chairman in terms says in his letter of  6 January 1999 that no such application was made.  

	Mr Price-Rowlands has referred us to the Tribunal’s powers under Rule 4.1(b) of the Employment Tribunal Rules of Procedure 1993 to make an Order for discovery of its own motion.  Nevertheless it seems to us that where the Appellant was represented by a solicitor, it was for him to make the application for an adjournment in order that discovery should take place. Instead he opted to run the case without him seeing that material and without it being available to put before the Tribunal.  As to the second point, it concerns the relevance of that material.  The question, as the Tribunal properly directed themselves, is not whether they would have concluded that the Appellant had been dishonest from that evidence but whether Mr Grey reached that conclusion on reasonable grounds following a reasonable investigation.  

	I put to Mr Price-Rowlands, in argument, the analogy with an employee who said that he had seen another employee taking money from the till.  Would that first employee’s evidence of fact be relevant to the issue of fairness?  We think it would not and similarly we are doubtful whether this video and computer evidence is strictly relevant to the issue of fairness which was before the Tribunal.

	Secondly the conduct of the hearing.  Mr Price-Rowlands realistically acknowledges that he is in some difficulty in view of the conflict between the account of the hearing given by Mr Roberts affidavit and that which appears in the Chairman’s letter.  It seems to us that the Chairman was entitled to give an indication, without of course finally making up his mind about the case, with a view to allowing the parties an opportunity to try and settle their differences.  When that did not happen, he and his colleagues continued to hear the whole of the case before reaching a final decision.  We say the whole of the case because it is quite clear to us from the Chairman’s letter that the Appellant was able to give evidence-in-chief, to be cross examined and indeed questioned by a member of the Tribunal.

	Thirdly, natural justice.  He submits that where as here an employee with a long and unblemished service is dismissed for alleged theft, it is incumbent upon the employer to carry out a full investigation.  This to some extent reflects his first submission, namely that the Tribunal were unable to do justice in this case without discovery of the video and computer evidence having taken place and there being given an opportunity to consider it.  For the reasons we have already given, we do not accept this submission and accordingly at this preliminary hearing stage, we have concluded that this appeal raises no reasonably arguable points of law and accordingly it must be dismissed.